tag:blogger.com,1999:blog-4824688363128407673.comments2019-03-21T07:25:03.415+00:00Predictable ParadoxGraeme Cowiehttp://www.blogger.com/profile/02704481523638679620noreply@blogger.comBlogger153125tag:blogger.com,1999:blog-4824688363128407673.post-35152373435513070892019-03-21T07:25:03.415+00:002019-03-21T07:25:03.415+00:00This is a great article very informative. Here Lo...This is a great article very informative. Here <a href="https://fleetquid.co.uk/no-credit-check-loans.php" rel="nofollow"> Loans for bad credit direct lenders </a> this is providing. Avail it instantly and in easier way .Thank you.sierra zoehttps://www.blogger.com/profile/12305727822601198845noreply@blogger.comtag:blogger.com,1999:blog-4824688363128407673.post-72944043235191139912017-09-17T20:43:56.084+01:002017-09-17T20:43:56.084+01:00Thanks Graeme, very interesting.
Two points if I...Thanks Graeme, very interesting. <br /><br />Two points if I may. First, this underlines yet again the urgent need for a codification of the UK constitution to ensure that the rules of the game are agreed and understood. <br /><br />Second, as a passionate Remainer, I think Brexit is the biggest disaster the UK has had since WW2. But it is not correct to characterise it as secession, becuase the EU is not a state. Instead, Brexit is the UK withdrawing from a supranational intergovernmental organisation that has limited and strictly defined international legal personality and competence. Toby's Random Musingshttps://www.blogger.com/profile/01756931810010547397noreply@blogger.comtag:blogger.com,1999:blog-4824688363128407673.post-72275508598324700612017-09-17T20:43:49.445+01:002017-09-17T20:43:49.445+01:00Thanks Graeme, very interesting.
Two points if I...Thanks Graeme, very interesting. <br /><br />Two points if I may. First, this underlines yet again the urgent need for a codification of the UK constitution to ensure that the rules of the game are agreed and understood. <br /><br />Second, as a passionate Remainer, I think Brexit is the biggest disaster the UK has had since WW2. But it is not correct to characterise it as secession, becuase the EU is not a state. Instead, Brexit is the UK withdrawing from a supranational intergovernmental organisation that has limited and strictly defined international legal personality and competence. Toby's Random Musingshttps://www.blogger.com/profile/01756931810010547397noreply@blogger.comtag:blogger.com,1999:blog-4824688363128407673.post-4364819364152542842017-06-20T18:24:04.256+01:002017-06-20T18:24:04.256+01:00It is potentially a contempt of parliament to issu...It is potentially a contempt of parliament to issue the proceedings as they relate to proceedings in parliament and are covered by Article IX of the Bill of Rights.John Hemminghttps://www.blogger.com/profile/16563623241172913378noreply@blogger.comtag:blogger.com,1999:blog-4824688363128407673.post-20520642496613447372017-03-17T17:45:32.233+00:002017-03-17T17:45:32.233+00:00The holding of a referendum is, constitutionally, ...The holding of a referendum is, constitutionally, distinct from what the consequences of its result should be. In a strict legal sense, no one is bound to give effect to the result of any referendum in the United Kingdom, unless legislation specifically requires them to take steps to implement it. It was merely a mutual political understanding in 2014 that saw both governments proceed on the basis that only a simple majority of voters should be sufficient to give rise to negotiations to secede.<br /><br />Politically, there are problems with threshold requirements. You may recall for instance, in the 1979 Scottish devolution referendum, a 40% of registered voters threshold was imposed as a condition of devolution being brought into effect. Although a majority of voters supported devolution that time, the turnout-based threshold was not met. In that case, the Scotland Act 1978, which had legislated pre-emptively for the devolution settlement, was therefore not brought into effect. This was widely seen as &quot;frustrating the will of the people&quot; and was not repeated in 1997. However, the vote for a Scottish Parliament would have met that threshold in that instance anyway.<br /><br />Other countries obviously have higher thresholds when dealing with referendums. When they are &quot;ratifying&quot; referendums for e.g. constitutional amendments, they are already codified into law and so it is legally impossible to circumvent them. However in the case of independence or secession referendums, there is no &quot;prior&quot; threshold in law, and normally the details of secession have not been pre-negotiated. This means that these referendums are not normally legally binding in any sense and have no legal effects on their own.<br /><br />In Canada, they have sought pre-emptively to use threshold requirements to restrict the legal power of the Canadian Government to enter into negotiations to give effect to the secession of a province. Under the Clarity Act, there must be a &quot;clear majority&quot; in favour of secession. This is not the same as a &quot;simple majority&quot;, but they do not define what a &quot;clear majority&quot; is. It is left to the House of Commons of Canada to determine for themselves in the individual circumstances whether or not a majority was in fact &quot;clear&quot;. This might mean a &quot;simple&quot; majority is enough, as Quebec secessionists argued, but it might not. It is ultimately for Canada&#39;s lower house to decide whether or not a clear mandate exists to authorise secession negotiations.<br /><br />It would, I think, be difficult under the current arrangements and political conditions to impose an additional thresholds or requirements, because of the 1979 situation. However, my own view is that if a freestanding right to hold an independence referendum were permanently conferred on the Scottish Parliament, it might be viable to insist on those kinds of restraint.<br /><br />I have suggested in my thesis and elsewhere, for example, that you might insist on (a) minimum waiting periods between referendums and/or (b) some form of higher threshold if a second referendum is held in quick succession after the first. Designing a formula by which this would work would not be easy, but nor would it be impossible. You might use a similar approach to the Canadian Clarity Act in that instance, to require a government not to enter into negotiations if a threshold is not met, to give them discretion if a higher threshold is not met, and/or to require them to enter into negotiations if a higher threshold is met.Graeme Cowiehttps://www.blogger.com/profile/02704481523638679620noreply@blogger.comtag:blogger.com,1999:blog-4824688363128407673.post-44490898702203532522017-03-17T09:09:04.121+00:002017-03-17T09:09:04.121+00:00How feasible would it be for there to be an insist...How feasible would it be for there to be an insistence on, say, a majority of eligible voters rather than turnout?Unknownhttps://www.blogger.com/profile/15149164983540335996noreply@blogger.comtag:blogger.com,1999:blog-4824688363128407673.post-84324762271376825082017-02-13T18:37:44.091+00:002017-02-13T18:37:44.091+00:00I should add to clarify:
Head B3 was amended by a...I should add to clarify:<br /><br />Head B3 was amended by a series of s30 Orders, in order to allow the Scottish Parliament to lower the franchise before the 2016 elections, despite the fact that the Scotland Act 2016 had not yet passed.<br /><br />This is why s3(4)(a) of the Scotland Act 2016 says:<br /><br />&quot;Omit the words from “The franchise at local government elections” to the end of the Exceptions&quot; rather than just &quot;Omit the words &quot;The franchise at local government elections&quot;.<br /><br />The temporary powers granted were more specific and restricted to things like lowering the voting age. The 2016 Act&#39;s provisions, however, on coming into force, give the Scottish Parliament complete freedom over its franchise, subject to other restrictions like its requirement that legislation is compatible with Convention rights and EU law.Graeme Cowiehttps://www.blogger.com/profile/02704481523638679620noreply@blogger.comtag:blogger.com,1999:blog-4824688363128407673.post-17967005585299117312017-02-13T18:16:03.036+00:002017-02-13T18:16:03.036+00:00You have misinterpreted what the Scotland Act 2016...You have misinterpreted what the Scotland Act 2016 does.<br /><br />When the Scotland Act 1998 was enacted, Schedule 5 Head B3 did, broadly speaking, two things:<br /><br />1. Prohibit the Scottish Parliament from legislating in relation to elections to the Westminster, European and Scottish Parliaments, and the legislation that regulates them<br /><br />2. Altering the franchise for local authority elections<br /><br />Notice that under s11 Scotland Act 1998, the franchise for Holyrood is defined with direct reference to the franchise for local authority elections. So if 2. had not been reserved, the Scottish Parliament would have been able, indirectly, to change its own franchise.<br /><br />s3(3) of the Scotland Act 2016 changes the first part, by removing restrictions on legislating in relation to Scottish Parliamentary elections.<br /><br />s3(4) of the Scotland Act 2016 changes the second part. It removes this second restriction, namely &quot;the franchise at local government elections&quot;. This gives effect to the Smith Commission&#39;s commitment that the Scottish Parliament gets to set its own franchise and those of local elections.<br /><br />What follows after is not a restriction on the franchise. It is a restriction on how the Scottish Parliament exercises its powers in relation to its and local government Elections.<br /><br />Section 3(4)(a) prohibits the Scottish Parliament from legislating to combine a poll that falls outside of its legislative competence with any other election: i.e. to make arrangements to have them held on the same day. This is to stop the Parliament from shifting its own or local authority elections in order to influence the result of a referendum (on whatever issue) that they themselves did not have the power to call. An example of this might be if the UK Government holds a referendum on the Brexit deal and it could be shown that such a referendum was not within the Scottish Parliament&#39;s competence, Holyrood would not be allowed to move its own election to the same day.<br /><br />The use of this phrase &quot;the combination of polls&quot; also appears in s12A of the Scotland Act 2016. This provision gives the Secretary of State for Scotland the power to make provision about holding Scottish Parliamentary elections, by-elections etc on the same day as other UK elections that don&#39;t fall under the Scottish Parliament&#39;s control. The reservation exists in part to stop the Scottish Parliament overriding the function of the Secretary of State.<br /><br />That part of the Scotland Act 2016 does not place any restriction on the franchise of any referendum. If a referendum is outwith the competence of the Parliament it is not allowed to hold it anyway, let alone set a franchise in relation to it.<br /><br />The setting of the franchise for a referendum held by the Scottish Parliament is a matter for the Scottish Parliament except to the extent that specific legal provisions restrict their legislative competence. Last time the UK Government placed no restrictions on the franchise in their s30 Order and it would be a highly dangerous approach were they to impose such restrictions this time. Clearly they have the legal power to do this, because Westminster is a sovereign legislature, but that is not the same as saying that they will insist on setting the franchise rather than letting Holyrood do it themselves.<br /><br />The position would be even less tenable now than it was then to impose a restriction, because the Scottish Parliament has assumed more control over the franchise in plebiscites taking place only in Scotland since the 2014 referendum. The issue isn&#39;t one of substance, but of process. The reason the Tories excluded EU nationals from the EU referendum was because they maintained the franchise should be whatever the Westminster franchise was. It was a question of consistency, not withdrawal of rights.Graeme Cowiehttps://www.blogger.com/profile/02704481523638679620noreply@blogger.comtag:blogger.com,1999:blog-4824688363128407673.post-79229746035476296192017-02-13T15:44:10.933+00:002017-02-13T15:44:10.933+00:00http://legislation.data.gov.uk/cy/ukpga/2016/11/20...http://legislation.data.gov.uk/cy/ukpga/2016/11/2016-05-23/data.htm?wrap=true<br /><br />Thanks Graeme and good blog. I accept entirely that they position could change and that the UK could continue to allow EU nationals to continue to vote (as you hopefully appreciate I support) post Brexit. I personally find it very difficult to see that happening given the Brexit rhetoric, but it clearly is a possibility. <br /><br />However am I not correct in saying that the Scottish Parliament does not have competence over the franchise when it comes to referenda that are not in the legislative competence of the Parliament (see 3(4)(a))?<br /><br />I would therefore suggest that it will be the British government that will make this call and with no Liberal Democrats in the cabinet (as there was last time) I would have thought that the probability of the UK enabling the EU nationals to vote would be next to nil. I accept that is not the same probability as &quot;certainly won&#39;t&quot; but that&#39;s the restrictions of Twitter for you!<br /><br />Neil Lovatthttps://www.blogger.com/profile/01850168753314706369noreply@blogger.comtag:blogger.com,1999:blog-4824688363128407673.post-23736886214197893882016-12-31T01:50:11.879+00:002016-12-31T01:50:11.879+00:00Could do with an update post 2016 act ����Could do with an update post 2016 act ����Steve Sayershttps://www.blogger.com/profile/02743783984642276223noreply@blogger.comtag:blogger.com,1999:blog-4824688363128407673.post-60490635691151415862016-11-14T17:22:21.970+00:002016-11-14T17:22:21.970+00:00Handclapping, I disagree. Whatever you or I might ...Handclapping, I disagree. Whatever you or I might think about this strategy, be in no doubt it reflects the views of the clear majority of party membERS. Neilnoreply@blogger.comtag:blogger.com,1999:blog-4824688363128407673.post-5504799479654963312016-11-14T17:19:33.395+00:002016-11-14T17:19:33.395+00:00Presumably the Muscatelli Group could be called to...Presumably the Muscatelli Group could be called to give evidence to a Parliamentary Committee. Neilnoreply@blogger.comtag:blogger.com,1999:blog-4824688363128407673.post-53923930653523161632016-11-14T17:12:41.006+00:002016-11-14T17:12:41.006+00:00The loan of 4000 Tory votes in NEF is not winning....The loan of 4000 Tory votes in NEF is not winning. More like Pietri at the 1908 Olympics being helped over the line!<br /><br />It wories me that the membership is liberal and the leadership isn&#39;t. Just as the Tory membership is conservative and its leadership radical so the Liberal Democrat&#39;s is anti-democratic. The members shall conform to the policy of the leadership rather than them to the views of the members.<br /><br />If these trends continue it won&#39;t be just the Labour Party in convulsions.handclappinghttps://www.blogger.com/profile/17150567350735133696noreply@blogger.comtag:blogger.com,1999:blog-4824688363128407673.post-50199050807238067302016-11-14T17:05:04.297+00:002016-11-14T17:05:04.297+00:00It appears that in common with the Tories and Labo...It appears that in common with the Tories and Labour, hatred of the SNP overrides any sensible discussion. I fear that we are heading for, if we are not already there, a polarisation of Nationalist v Unionist to the fetriment of the Scottish people.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-4824688363128407673.post-11146965227056360892016-11-14T16:22:32.094+00:002016-11-14T16:22:32.094+00:00And if they are prepared to lie about their own ac...And if they are prepared to lie about their own activists to defend a position, Graeme, what else would they be prepared to lie about? Patrick Rodennoreply@blogger.comtag:blogger.com,1999:blog-4824688363128407673.post-77690728464952224762016-11-14T16:11:06.050+00:002016-11-14T16:11:06.050+00:00&quot;The gravity of the party has shifted, and it...<i>&quot;The gravity of the party has shifted, and it amounts, in essence, to a slightly more cosmopolitan Conservative and Unionist party that doesn&#39;t like Iain Duncan Smith.&quot;</i><br /><br />I dunno about he rest of the country, but from my experience in and around Aberdeen, &quot;Lib Dem voter&quot; has always pretty much meant &quot;Tory but doesn&#39;t want to admit it&quot;. I say that not to be arsey, but to point out that if the Tories become properly detoxified, there&#39;s not really much need for middle class folk to keep up the pretence that they&#39;re not just Tories, especially if all they&#39;re really looking for is a pro-union party that isn&#39;t Labour...<br /><br />You guys need fewer Malcolm Bruce types and more, erm... Well, Hugh O&#39;Donnell was alright.Doug Danielhttps://www.blogger.com/profile/15017218581660887134noreply@blogger.comtag:blogger.com,1999:blog-4824688363128407673.post-67186631078492116262016-11-14T15:45:06.793+00:002016-11-14T15:45:06.793+00:00How are they going to sell this to voters in Scotl...How are they going to sell this to voters in Scotland? As in how it would happen? Sounds like they would be happy to lie to them as well.Brian Powellnoreply@blogger.comtag:blogger.com,1999:blog-4824688363128407673.post-37368537275722243722016-11-13T16:44:17.441+00:002016-11-13T16:44:17.441+00:00Maybe the best course of action is to create a new...Maybe the best course of action is to create a new party. Its very wrong that the Conference passed a watered down motion. and it does prove that the party executive doesn&#39;t want to think about Independence. But its not out of evil or spite or unthinking unionism. The party really has no choice. Being a devil&#39;s advocate, the Parliament has already voted in a motion to find a reverse greenland type of situation. Failing that, it was Single Market and Free Movement. We know that Scots/Londoners want the Single Market. But others are much more tied between the 2. We also know that people wld now vote Remain in a new referendum. In essence, SLD (or the Federal Party) doesn&#39;t really have much resources. The closest the party has done is to ally with other MPs to force a parliamentary vote. <br />Second. The parliamentary party has been well known for FOI requests. Muscatelli&#39;s standing group has done some great work, but we don&#39;t know much about it. We know that members can leave, we know that some work for think tanks. But we don&#39;t know how often they meet, how they achieve their goals, and what contacts they make. Yes, there is a case for secrecy and is not comparable to the government. But the standing group should be more open about how they have achieved their aims. While this doesn&#39;t justify parliamentarian insults, it does justify some doubt.<br />Third. You are right that party has shifted away from its historic federalism. and you are right that it shouldn&#39;t have happened. But there aren&#39;t many options for a middle solution when it comes to Europe. Reverse Greenland is impossible. What&#39;s more possible is EFTA, and Sturgeon is right to concentrate on that. However, this means resources and very few (other than Labour) have enough to create a Pro-EFTA majority. <br />When you put all these together, you have a semi-coherent vision of why people took the wrong decision<br />The Fire Manhttps://www.blogger.com/profile/15374464345849156299noreply@blogger.comtag:blogger.com,1999:blog-4824688363128407673.post-90043694913886462832016-06-27T15:44:42.385+01:002016-06-27T15:44:42.385+01:00I thought last time around that the whole country ...I thought last time around that the whole country should have voted on Scottish independence, and that should be the case next time. The union is a partnership and both (all) partners should be consulted. Essentially, people would be asked to choose between England &amp; Wales leaving the EU with Scottish independence or the country staying united but also staying in the EU. Pieter-Paulnoreply@blogger.comtag:blogger.com,1999:blog-4824688363128407673.post-25366429262574818292016-05-27T09:10:54.985+01:002016-05-27T09:10:54.985+01:00I used to work at SLC. They, and they gov dept sta...I used to work at SLC. They, and they gov dept staff, always erred in favour of the student, within the operating principles coming from government.Blakey UKhttps://www.blogger.com/profile/01596329488350919857noreply@blogger.comtag:blogger.com,1999:blog-4824688363128407673.post-29932080074221519012016-01-23T21:11:24.500+00:002016-01-23T21:11:24.500+00:00I must admit I&#39;m with Ian. When I went to univ...I must admit I&#39;m with Ian. When I went to university in 1973 you gor there because you had good highers and when you did that all fees were paid and all you paid for were living expenses, either by your parents if they could afford it, or by grants. I, and ten kids from my street of 20 council houses, were examples of social mobility. Go back there now and none of the kids are going anywhere.<br /><br />I got a grant based on my folks&#39; earnings and when my dad died in 1975 I got a full grant. I also always had a part time job. The reason they can&#39;t afford to do that now is because they have expanded the courses with noddy subjects that were previously provided by tech colleges or apprenticeships. Communication, media, retail, event management - perhaps they should be paid for and courses on science, engineering, medicine etc should be free. That might encourage kids to strive for better school qualifications so they can get into courses that give worthwhile jobs and are vital to the country.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-4824688363128407673.post-76777326039467356802016-01-21T16:05:45.094+00:002016-01-21T16:05:45.094+00:00Graeme,
Carl seems to be referring mainly to the ...Graeme,<br /><br />Carl seems to be referring mainly to the proportionality in principle of a law that sets down a power to interfere with a convention right. That a law could prescriptively grant a PA the power to behave in a way that would otherwise be seen as disproportionate to the aim of the legislation. Is this an important distinction? Is it even possible? Would proportionality in this sense not actually become a part of the reasoning against legality? A law that blesses a disproportionate exercise of power could be seen as arbitrary. Although there is no excuse for ignorance of the law, the ordinary person cannot be expected to be aware of every single law and the manner in which it is designed to be applied. If a law goes against common sense and values, then surely most people would be in danger of falling afoul of it and it cannot be prescribed.Flayhttps://www.blogger.com/profile/07389779350824751473noreply@blogger.comtag:blogger.com,1999:blog-4824688363128407673.post-80188715963931710882016-01-21T15:33:42.201+00:002016-01-21T15:33:42.201+00:00On twitter I asked:
Me: &quot;Okay, so let me get...On twitter I asked:<br /><br />Me: &quot;Okay, so let me get this straight. Judicial review is not sufficient protection against arbitrary exercise...&quot;<br /><br />Carl: &quot;So Lord Dyson ruled, yes.&quot;<br /><br />Me: &quot;...of power. And for that reason alone, a PA is now free to ignore ECHR in all respects when exercising the power&quot;<br /><br />You: &quot;Yes, because section 6(2)(b) displaces section 6(1) whenever it gives effect to the power.&quot;<br /><br />If you think that these two outcomes are in any way rationally connected, then there is no point in any further discussion. They are so far from rationality that it requires a worm hole of the mind to get there. I would bet everything I have that you are wrong. A judge decides that there is insufficient protection against arbitrary power and in so doing he ensures that the power can be exercised as arbitrary as domestic law makes possible. I&#39;d pay good money to see you try to argue that in the Royal Courts of Justice.Flayhttps://www.blogger.com/profile/07389779350824751473noreply@blogger.comtag:blogger.com,1999:blog-4824688363128407673.post-56595493272029257092016-01-21T15:25:39.775+00:002016-01-21T15:25:39.775+00:00Matt (Flay),
I&#39;m, not overlooking the last pa...Matt (Flay),<br /><br />I&#39;m, not overlooking the last part of what Lord Hughes said at all. I agree with it. <br /><br />I absolutely agree that the &quot;prescription by law&quot; issue does not subsume the &quot;proportionality&quot; issue. If an action or statute is &quot;prescribed by law&quot; then it may still be disproportionate, and so breach rights. An example of such a statute, according to Strasbourg, is UK legislation barring prisoners from voting.<br /><br />Nor does failure to pass the &quot;prescription by law&quot; condition mean an action or statute is proportionate.<br /><br />However, if an action or a statute is not &quot;prescriped by law&quot;, then it cannot comply with article 10. You can if you like enter into the purely academic exercise of assessing whether it pursues a legitimate aim and is proportionate to that aim. But even if it is, it still breaches rights, as it was not &quot;prescribed by law&quot;. This is what Lord Hughes means when he says it&#39;s a &quot;prior test&quot;. Carl Gardnerhttp://www.headoflegal.comnoreply@blogger.comtag:blogger.com,1999:blog-4824688363128407673.post-68589320642222888162016-01-21T11:10:52.538+00:002016-01-21T11:10:52.538+00:00Parliament will always be able to legislate contra...Parliament will always be able to legislate contrary to rights. The issue is always whether the statute can be read down on its application. If the statute is explicit in its contravening ECHR, there will be no way to read it down. If a court manages to find a way of reading it down then Parliament wasn&#39;t clear enough.Flayhttps://www.blogger.com/profile/07389779350824751473noreply@blogger.com